Is Visitability Legal?

How Courts Have Addressed Visitability

Visitability-type legislation has been sued only once, and the legislation survived the lawsuit. This can provide useful precedent if other suits arise in the future. In 2002, four days before the Pima County, AZ ordinance went into effect requiring basic access in all new homes in unincorporated Pima County, a group of builders challenged the ordinance in court. The builders argued that the law was unconstitutional, claiming it violated property rights and personal freedom. The suit was filed by the Mountain States Legal Foundation, a Denver, CO group, joined by the Southern Arizona Homebuilder’s Association. Meanwhile, the builders petitioned the courts to issue an injunction permitting them to omit the access requirements in the houses built in Pima County during the time they were suing. The courts refused, so builders began constructing houses incorporating access requirements. Later, the U.S. District Court of the District of Arizona dismissed the case, saying that entities in Colorado lacked jurisdiction to sue in Arizona.

The builders sued again, this time in State Superior Court (Washburn v. Pima County). A Tucson builder and the Southern Arizona Homebuilders Association (SAHBA) claimed that the relevant county ordinance violates the equal protection and privacy clauses of the state constitution. Arguing that the standards cited in the ordinance did not properly constitute a “code” and that the ordinance deprived homeowners and builders of fundamental right to design private homes, SAHBA eventually took its case to the Arizona Court of Appeals. In its verdict, the Court of Appeals unanimously ruled in favor of the ordinance. Among the court’s statements was, “Disability is a growing problem both nationally and locally, and the county also introduced evidence that Arizona’s population of people over the age of sixty is expected to triple by 2025. Although many of these disabled people will not be confined to wheelchairs, the county concluded from these figures that the number of people confined to wheelchairs is rising. For these reasons, the county addressed a legitimate governmental interest when it adopted a building code designed to increase the number of homes accessible to those in wheelchairs.” The homebuilders then attempted to take the case to the State Supreme Court but it refused to hear the case.

As of 2008, the county had built more than 15,000 visitable houses. The City of Tucson replicated the county ordinance in October 2007, effective January 1, 2008.